In June 2013, the Supreme Court decided Fisher v. University of Texas at Austin, which
examined the legality of University of Texas at Austin's ("UT-Austin") race-conscious
undergraduate admissions policy. The case began when Abigail Fisher, a White
applicant, sued UT-Austin for rejecting her college application. Fisher alleged that UTAustin's admissions policy violates the 14th Amendment's Equal Protection Clause and
federal civil rights statutes.

In Fisher, the Supreme Court reaffirmed a compelling interest in higher education
diversity, while sending UT-Austin's plan back to the 5th Circuit Court of Appeals for
further review without ruling on its legality. It concluded the 5th Circuit didn't correctly
apply existing law under Grutter v. Bollinger and Gratz v. Bollinger by deferring too
heavily to UT-Austin's judgment.

How does UT-Austin's admissions policy work?

UT-Austin's
admissions policy is a two-step process. Most freshmen are admitted at step one: the state's Top Ten Percent Plan
(for example, 86 % of freshmen were admitted this way in 2009). The Top Ten Percent Plan is a policy that
guarantees admission to applicants who are Texas high school seniors with GPAs
in the top 10% of their class, without looking at other factors like SAT
scores, extracurricular activities, leadership, or overcoming adverse
experiences. [1] In step two of UT-Austin's
policy, the remaining number of freshmen are admitted based on an individual
review of their overall applications, which takes into account a broad range of
factors like academic ranking, leadership, extracurricular activities,
diversity factors (including race), and socio-economic status.

UT-Austin's
policy was fashioned to comply with the Supreme Court's 2003 Grutter v. Bollinger
decision, which held that race can be one of many factors considered in college
admissions to attain campus diversity. Under Grutter, a school can
try to attract enough racial minority students so that students from those
communities won't feel isolated or like spokespeople for their race on campus.
What UT-Austin's policy does NOT do is to reserve a specific number of slots or
a percentage of its class for minority students - which is prohibited by the
Supreme Court and at odds with the diversity goals UT-Austin's admissions
policy is trying to achieve.

Well, isn't Fisher right?In America, it's wrong to discriminate on the basis of race.Aren't diversity considerations just special
treatment for certain groups?

It's
not just wrong to racially discriminate--it's illegal. The U.S. Constitution and federal law
prohibit schools from discriminating against applicants based on their race, in
addition to other attributes like sex, religion, or national origin. When a university denies admission to an
applicant based on one of these characteristics, that's "negative action." An Asian applicant who is the victim of
negative action would have been admitted if
she or he were White. In the past,
universities have used negative action against minorities to preserve the
traditional White character of colleges. Today, this can take the form of legacy and donor admissions.AALDEF
emphatically opposes negative action. In fact, we have a long track record
of fighting negative action against Asian students, workers, immigrants, and
others.

But
negative action is not the same as diversity
considerations, which are a constitutional way to promote diversity in a
university's student body to benefit all students. In a legal race-conscious admissions
plan--like UT-Austin's--race is not the
only factor and it is not the
deciding factor in determining who gets admitted. This is different from negative action, which
rejects non-White applicants solely because of their race or for factors
related to their race.

Racial
minorities are not the only ones who benefit from UT-Austin's admissions
policy, which promotes taking into account all of the factors of a student's
application in determining merit. A
rural White student who is the first in her family to attend college can
benefit, as can an Asian refugee student from the inner-city, or a Black or
Latino student from other circumstances.

What's the difference between allowing diversity considerations and
having a so-called "merit-based admissions" program?

There
is no difference. Allowing diversity
considerations, or having a so-called "race-conscious admissions" program, is
the same as having a so-called "merit-based program," and UT-Austin's program
is a good example of this. The basis for
admission for the vast majority of its freshman class is only grades (under the Top Ten Percent Plan), and the remainder of
applicants are judged holistically based on an Academic Achievement Index
(grades plus test scores) and a Personal Achievement Index (which includes a
large number of factors such as extracurricular activities, leadership, and
family background, as well as race). The vast majority of these factors are
direct markers of different kinds of achievement or "merit." Considering factors like race only provides
some context for those achievements and the struggles faced by applicants and
those similarly situated to them.

Asian Americans might not be hurt by diversity considerations,
but are they helped by them?

Here
are a few of the ways in which Asian Americans are helped by diversity
considerations in admissions:

Asian Americans as a group continue to be underrepresented in certain academic programs. For example, after Proposition 209 banned race-conscious admissions in California, Asian enrollment at UC Berkeley fell in some graduate programs. And across all UC law schools, White enrollment rose dramatically (59.8% to 71.7%) immediately after 209, while Asian enrollment fluctuated by less than 1%.

When admissions and enrollment data on Asian students is broken
down by ethnicity, it's clear that particular Asian ethnic subgroups face
unique social and economic disadvantages and remain underrepresented across the
board at selective colleges and graduate programs. Well-meaning people have
depicted Black and Latinos as the typical beneficiaries of diversity
considerations and Asian Americans as "model minorities." But in reality, some
Asian ethnic subgroups' education levels are just about the same as Blacks and
Latinos. For example, Blacks and Latinos above the age of 25 hold bachelor's
degrees at 18% and 13% respectively, compared to 14% for Cambodian and Hmong
communities and just 12% for Laotians. When Asian Americans are not all lumped
together within one catch-all category, the "model minority" myth falls apart.

Exposure to diversity is one of the most important parts of
education. From kindergarten on, we don't only take one subject or read one
author or learn one perspective. Nowhere is this more important than in colleges
and universities, where students from all over the country, and sometimes even
the world, can have the opportunity to learn together. In our increasingly
globalized world, no education is complete if it doesn't include the
opportunity to interact with people of different racial, ethnic, and cultural
backgrounds. Diversity is also necessary in breaking down the racial
stereotypes that Asian Americans face throughout their educational and
professional lives. Now that Asian
Americans are the fastest growing population in the United States, it's more
important than ever that Asian American students are equipped to be leaders in
a global workforce.

So if some Asians face particular struggles in their
communities, why not just look at class status? Why the need to look at race?

UT-Austin's
plan already considers class as one of many factors in admissions. But race and
ethnicity are unique elements of diversity separate and apart from other
important factors like class. Due to the large number of economically disadvantaged
White applicants, admissions policies that consider only class diversity won't
do an adequate job of achieving overall diversity. Coming from a different
racial or ethnic background gives students valuable experiences and abilities
that they can bring to the table - whether it's speaking a different language,
growing up in a different culture, or having a different perspective. This is
true for Asian, Black, Latino, and White students. By only bringing together
students of diverse economic backgrounds, colleges will miss out on a great
deal of diversity. That's why UT-Austin is so committed to defending race-conscious
admissions policies.

I've heard people say that my son could get into all of the
University of California schools--but not the East Coast elite schools--because California
bans race-conscious admissions.Wouldn't
Asian Americans get fair treatment at competitive schools if they banned
diversity considerations?

Not
quite. Serious doubts remain about
whether California's ban on race-conscious admissions policies (Proposition 209)
had a positive impact on Asian applicants' chances. In fact, in the nine years before Proposition 209 ended
race-conscious admissions policies in California, Asian student enrollment at
University of California (UC) schools rose twice
as fast it did in the 14 years after
race-conscious policies were banned.

In
any event, there is evidence that banning diversity considerations further
disadvantaged some Asian students. That's because the 24 distinct
ethnic groups that make up the Asian American community have a range of
academic achievement and challenges. In California, for example, 40% of
Cambodians and Laotians haven't finished high school -- twice the statewide
rate. After Proposition 209, these Asian
American subgroups, among others, remained drastically underrepresented in
freshman classes at UC schools. Diversity
considerations, like those used by UT-Austin, can be critical in ensuring that
the range of Asian American applicants' experiences are given the individual
consideration they deserve.

Why should Asians give up spots to Blacks and Latinos at most
selective colleges?

Asians don't give up spots to Blacks and Latinos -- they compete for spots with
students of all backgrounds. Opponents of diversity considerations sometimes
describe college admissions as a zero-sum game for applicants of color, with
Asians on one side and Blacks and Latinos on the other. That framework assumes there are only a fixed
number of spots left for students of color after
Whites and other students have been admitted. If this were true, it would mean that when an Asian student applies to a
university, she or he competes solely with Asian, Black, and Latino candidates
for the remaining spots.

If
different minorities had to compete only
with each other (and not Whites) for a set number of spots, this would be, in
effect, a cap on minority admissions or a quota--which is strictly prohibited by
the Supreme Court under the Grutter
decision. It would also mean that White
students were not in competition with Asian, Black, or Latino students for
admission into selective colleges. At
schools with diversity considerations like UT-Austin's, the admissions process puts
all applicants, regardless of race,
in one single pool, then considers all the factors that make each of them a
good fit for the school, including their contribution to campus diversity.

In
the most selective schools, college admission is an unavoidably competitive
process. But it should not be a race for the remainder. Under a fair admissions
policy, White students must compete for admission on a level playing field
alongside Black, Asian, and Latino students. UT-Austin's admissions policy ensures that this happens by valuing what makes
applicants unique, like the immigrant experience, overcoming discrimination, or
being exposed to more than one culture. Asians, among others, benefit from all
of these considerations.

Is it true that Asian Americans need higher SAT scores than
others to be accepted to selective universities?

No.
One study claimed that 15 years ago, Asian applicants had to score 140 points
higher on the SAT (on a 1600 scale) than Whites to have the same rate of
admission. Of course, if such a thing were true, that might be evidence of discrimination
against students of color, or negative action--the exact opposite of race-conscious
admissions policies. Negative action is
illegal -- Asian applicants should never have a harder time getting accepted to
college than White applicants.

But
before we jump to conclusions, remember that SAT scores are not the only or
best indicator of an applicant's merit. Some researchers have pointed out that
grades are just as (if not more) important than SATs for college, and that
Asians with the same SAT scores on average have slightly lower GPAs than Whites.
Others contend that SAT test scores of Asian applicants are sometimes inflated
because some schools include international Asian students along with domestic
Asian American students, and statistically international Asian students have
higher SAT scores. (For example, at New York University's Stern School of Business,
nearly 50% of applicants are international Asian students). Still others have pointed out that Asian
students apply disproportionately more to majors and departments that heavily value
quantitative measures of merit like test scores (e.g., business), rather than
those that emphasize an applicant's body of work (e.g., graphic design).

That's
why a gap in SAT scores between racial groups does not, standing alone, prove
negative action. But if all relevant factors were considered alongside SAT
scores, and it turned out that colleges were in fact discriminating against
Asians or other racial minorities, then AALDEF would certainly look into taking
action.

Actually,
the weight
of research shows that Asian Americans, by and large, support
diversity considerations. In a multi-city survey by the Inter-University
Consortium for Political and Social Research from 2000, 63.1% of Asian
Americans indicated that "affirmative action is a good thing," 18.6% reported
that it "doesn't affect Asian Americans," and only 5.7% reported that it is a
"bad thing." AALDEF's own exit polls found that 75% of Asian American voters in
Michigan rejected Michigan's Proposal 2, a state referendum banning
race-conscious policies. Also, a recent study by Pew Research Center reported
that only 12% of Asian Americans expressed a belief that race-conscious
admissions policies hurt them. Regardless of what opponents of diversity considerations
have claimed, the evidence says that people of color stand together on this issue
more often than not!

AALDEF is requesting public comments and suggestions for additional FAQ responses in order to further develop this resource.